Malone v. United States, 6348.

• Decision Date: 15 February 1938
• Docket Number: No. 6348.,6348.
• Citation: 94 F.2d 281
• Parties: MALONE v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

94 F.2d 281 (1938)

MALONE v. UNITED STATES.

No. 6348.

Circuit Court of Appeals, Seventh Circuit.

January 6, 1938.

Rehearing Denied February 15, 1938.

Arthur R. Robinson, of Washington, D. C., and Albert Fink, of Chicago, Ill., for appellant.

Michael L. Igoe, U. S. Atty., and Austin Hall, Asst. U. S. Atty., both of Chicago, Ill.

Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This is an appeal from a judgment of conviction under a two count indictment which charged the defendant, in appropriate language, for the calendar years 1929 and 1930, with a violation of section 146 (b) of the Revenue Act of 1928, Title 26 U.S.C. A. § 145 (b) and note. The only substantial complaint made with reference to defendant's returns for the years in question was his failure to include the sum of $266,480 for the year 1929, and the sum of $62,050 for the year 1930, which it is charged constituted income of the defendant for those years, respectively.

The essential errors assigned are: First, denial of defendant's plea in abatement attacking the legality of the indictment because returned by an illegal grand jury; second, admission of evidence that defendant evaded his income tax for the years 1926, 1927, and 1928; third, action of the court in striking testimony concerning a statement made by the defendant to a witness whom he had consulted in 1920 concerning the subject matter of the charge; fourth, refusal of the trial court to direct a verdict; fifth, improper argument on the part of counsel for the government; and, sixth, erroneous instructions to the jury.

We shall first consider the question raised by defendant's plea in abatement. The indictment was returned at the October term, 1933, by a grand jury impaneled by Judge Barnes at the July term, and continued by him to succeeding terms, including the one which returned the indictment. Judge Barnes, not being the senior judge of the district, the troublesome question presented is whether he had the authority so to do. The solution of the same involves a construction of section 284 of the Judicial Code, as amended February 25, 1931, 46 Stat. 1417, U.S.C.A. title 28, § 421.

For the purpose of convenience and to make it less difficult to compare this section with previous acts, we have divided the same into numbered paragraphs. So arranged, the act is as follows:

1. "No grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor.

2. "If the United States attorney for any district which has a city or borough containing at least three hundred thousand inhabitants shall certify in writing to a district judge or the senior district judge of the district that the exigencies of the public service require it, the judge may, in his discretion, also order a venire to issue for a second grand jury:

3. "Provided, however, That if the United States attorney for the southern district of New York shall certify in writing to the district judge or the senior district judge of said district that the exigencies of the public service require it, said judge may, in his discretion, also order a venire to issue for a third grand jury.

4. "And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so.

5. "And the district judge or the senior district judge, as the case may be, may, upon request of the district attorney or of the grand jury or on his own motion, by order authorize any grand jury to continue to sit during the term succeeding the term at which such request is made, solely to finish investigations begun but not finished by such grand jury:

6. "Provided, however, that no grand jury shall be permitted to sit in all during more than three terms."

By this amended act there was added paragraphs 3, 5, and 6; otherwise the act is identically the same as the act which is supplanted, and which was in force from 1911 as section 284 of the Judicial Code. The act of 1911, for the first time, contains the identical provision above referred to as paragraph 2, 28 U.S.C.A. § 421. Prior to that time and since 1878, the act contained substantially the provisions now found in paragraphs 1 and 4. In other words, in 1911, the act was amended by adding paragraph 2, and, in 1931, by adding paragraphs 3, 5, and 6.

It is the contention of the defendant that the language contained in paragraph 5 conclusively demonstrates that in districts where there is more than one judge, only the senior judge is empowered with authority to continue a grand jury so that it may legally function during a succeeding term, while the government contends that any District Judge may so do. Judge Wilkerson of the District Court, who tried the issue raised by the plea, in a well-considered memorandum opinion, decided the question in favor of the government.

In United States v. Rockefeller, D.C., 221 F. 462, the court, under the act of 1911, denied a similar plea in abatement. After quoting the language found in paragraph 4, 28 U.S.C.A. § 421, the court on page 466 said: "The apparent purpose of this legislation was to provide a way in which a grand jury, with the permission of the court, may complete and conclude any investigation which it has actually commenced."

This court, in Elwell v. United States, 7 Cir., 275 F. 775, quoted and relied upon the same language in sustaining the legality of a grand jury continued by an order of the court beyond the term at which it was impaneled.

Also, this court, in Reuben v. United States, 7 Cir., 86 F.2d 464, 465, had occasion to discuss, without deciding, inasmuch as the question had not been properly preserved for review, the question here presented. What was said by the court there, throws little, if any, light upon the subject. After the decision in the Elwell Case, the Attorney General became concerned as to the proper interpretation of this statute, and for some ten years prior to 1931, recommendations were made to Congress at various times that the act should be amended so that there could be no question as to the authority of any District Judge to continue a grand jury. Such recommendations, however, apparently went unheeded until the act of 1931, and then it seems the amended act was brought about by the request of the district attorney of the Southern District of New York that provision be made for a third grand jury. This provision was made, and at the same time there was inserted paragraph 5, which seems to be the occasion for the confusion in the interpretation of the act. It seems perfectly plain to us that under the act of 1911, any District Court, by paragraph 4, was given authority to summon a grand jury and to provide for the continuance of its service to a succeeding term. Otherwise, the words "and to serve such time as it may direct" could have no meaning or purpose. This was the construction placed upon this language by the cited authorities and this, irrespective of the language in paragraph 2. It also appears that the only duty exclusively imposed upon a senior judge by paragraph 2 was to authorize him to order a second grand jury under the circumstances therein enumerated. We think the conclusion must likewise be reached that the only exclusive duty imposed upon the senior judge by paragraph 3 was to authorize him to order a third grand jury under the circumstances therein enumerated, but the significant point in construing the act of 1931 is that Congress made no change in paragraph 4. By retaining this provision in the amended act, it would seem that no District Judge was divested of any existing authority. Nor do we think the language found in paragraph 5 is in conflict with this view. "And the District Judge or the Senior District Judge, as the case may be" considered alone, might necessitate a different conclusion, but taking this language in connection with the act as it had previously existed, with the retention of paragraph 4, is not inconsistent therewith. "The District Judge" evidently was intended to refer to any District Judge who impaneled an original grand jury and "The Senior District Judge" had reference to any such judge authorized to impanel a second grand jury as provided in paragraph 2, or authorized to impanel a third grand jury as provided in paragraph 3.

The District Court for the Northern District of Illinois, on May 4, 1936, sustained a similar abatement plea, and Congress, August 24, 1937, enacted a new statute specifically authorizing any District judge to extend any grand jury.

Defendant urges, and not without logic, that, if such authority already existed, there was no occasion for enacting additional legislation. The report of the Committee on the Judiciary of the House concerning this recent legislation is as follows: "The sole purpose of this bill is to clear up a doubt that has arisen under existing law as to whether or not in districts where there are more than one district judge, a district judge other than the senior judge has power to extend the session of the grand jury to the term succeeding that for which it was summoned. It is desirable that it should be clear that any of the district judges of the district should have this authority. As pointed out by the Attorney General in his letter to the chairman of the Judiciary Committee, in which he recommended this legislation, ordinarily the power would be exercised by the judge who is presiding at the trial of criminal cases and who is in charge of the grand jury."

This report, in connection with the letter from the Attorney General recommending the enactment, strongly indicates that the measure was of a precautionary nature recommended and enacted so that the authority of a District Judge would be certain rather than of the dubious nature occasioned by...